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The Legal Standing of Uganda's Newly Signed Anti-Homosexuality Act 2023

Below please find links to the signed Anti-Homosexuality Act, otherwise known as The "Kill the Gays Bill" and The Petition seeking an injunction.

Yesterday 29th May 2023, the Speaker of Parliament communicated publicly that President Yoweri Museveni signed the Anti-Homosexuality Bill, 2023 into law. A copy of the signed Act is attached hereto and shows that the Bill was indeed signed on 26th May 2023.

By virtue of the President's signature, the Bill became an Act of Parliament under article 91(8) of the Constitution and section 8(1) and (2) of the Acts of Parliaments Act Cap 2, although the Act is not yet in force. Without an apparent date of commencement in the Act, it will come into effect upon being published in the Gazette under Article 91(8) of the Constitution, as per the provisions of section 14(1) of the Acts of Parliament Act, 2000.


Immediately after the signing was communicated, the legal team* put together under the Legal Committee of the Convening for Equality, which HRAPF co-chairs, filed a constitutional challenge to the Act. Filing has been concluded today and the filed copy of the petition is linked for your information.


The Petition is at the moment cited as Draft petition No. 15 of 2023.

The 9 petitioners include Prof. Sylvia Tamale, formerly of the School of Law, Makerere University; Dr. Busingye Kabumba of the Human Rights and Peace Centre, Makerere University; Andrew M. Mwenda, a renowned journalist; Solome Nakaweesi Kimbugwe, an independent consultant; Kasha Jacqueline Nabagesera, a human rights activist, Richard Smith Lusimbo, coordinator of Uganda Key Populations Consortium (UKPC); Eric Ndawula, a human rights activist; William Apako representing the transgnder community; and Human Rights Awareness and Promotion Forum (HRAPF), a human rights organisation.


*The Legal team representing the petitioners in court is composed of: Dr. Henry Onoria, Mr. Ladislaus Kiiza Rwakafuzi, Mr. Onyango Owor, Mr. Francis Tumwesige, Ms. Susan Baluka and, from the HRAPF legal aid clinic, Mr. Edward Ssemambo.

The petitioners challenge the Act on three main grounds:

i) That the enactment of the Anti-Homosexuality Act, 2023 by the 11th Parliament on 2nd May 2023 without meaningful and adequate public participation is inconsistent with and in contravention of Articles 1, 2, 8A, 20, 36, 38, 79 and Objective II (1) of the National Objectives and Directive Principles of State Policy of the Constitution.

ii) That the conduct of the Speaker of the 11th Parliament during the second and third readings of the Anti-Homosexuality Bill, 2023, on the 21st March 2023, and the second and third readings of the Anti-Homosexuality Bill, 2023 on 2nd May 2023, amounted to bias, and is inconsistent with and in contravention of Article 89(1) and (2) of the Constitution.


iii) That the provisions of the Act criminalising consensual same sex relations and those criminalising promotion of homosexualiy violate a number of constitutional rights including: the right to equality and non-discrimination guaranteed under Articles 20 and 21(1) & (2) of the Constitution; the right to dignity guaranteed under Articles 20, 24 and 44(a) of the Constitution; the right to liberty guaranteed under Articles 20 and 23 of the Constitution; the right to privacy guaranteed under Articles 20 and 27 of the Constitution; the right to health guaranteed under Objective XIV(b) of the National Objectives and Directive principles of State Policy, and Articles 8A, 20, 45 and 287 of the Constitution; the principle of legality under the right to a fair hearing guaranteed under Articles 20, 28(12) and 44(c) of the Constitution; the obligation to respect, uphold, and promote human rights from infringement by private persons under Articles 20 and 27(1) of the Constitution; the right to property and privacy of property guaranteed under Articles 26 and 27(2) of the Constitution; and the right to carry on any lawful occupation, trade or business guaranteed under Articles 20 and 40(2) of the Constitution.


The petitioners pray for a permanent injunction against the enforcement of the Act.


The legal team also plans to file an application for a temporary injunction to stay the implementation of certain provisions of the law pending the determination of the petition. This will however only be filed after the Act has been published in the Gazette or hs otherwise come into force.



PIC: SPEAKER ANITA AMONG- BIASED BEHAVIOR IN PARLIAMENT

Whereas the Act is not yet in force as explained above, it is already an Act of parliament because, after the President signing a Bill into law, the Bill becomes an Act of Parliament. Article 91(8) of the Constitution states: that “A bill passed by Parliament and assented to by the President or which has otherwise become law under this article shall be an Act of Parliament and shall be published in the Gazette Section 8 (2) of the Acts of Parliament Act Cap 2 also emphasises that 'A bill shall become an Act of Parliament on the signature by the President of the first of the copies refered to in subjection (1).' (Emphasis ours). Under Article 137(3) of the Constitution, any person who alleges that an Act of Parliament is inconsistent with the Constitution may petition the Constitutional Court for interpretation and for redress. This petition is therefore quite timely, and allows us to prepare for the application for a temporary injunction as soon as the Act is gazetted.

The next steps are going to be serving the Attorney General with the petition, and then the Court will give directions on conferencing and hearing. The ball is therefore now firmly in the hands of the court.



AHA 2023 Petition as Filed 30 05 2023
.pdf
Download PDF • 2.82MB

Signed Anti-Homosexuality Act 2023
.pdf
Download PDF • 3.04MB

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